March 19, 2018 / Election Law Society / Comments Off on Court Closes the Open Records Policy for Elected Officials: Personnel Records Exception under the Kansas Open Records Act

By: Emma Dolgos

In the information age, voters both want and expect access to information about candidates running for public office. The press plays a large role in disseminating such information, but only if they can get access to it.

The Kansas state legislature seemed to agree that the press needs information when they passed the Kansas Open Records Act (KORA). KORA not only stipulates that public records are to remain open for inspection “by any person,” but it also asserts that the act will be “liberally construed and applied” to advance the state’s policy. However, the statute includes a notable exception for personnel records. Section 45-221(a)(4) states that a public agency does not need to disclose “[p]ersonnel records, performance ratings or individually identifiable records pertaining to employees or applicants for employment” (emphasis added) other than names, positions, salary, or actual compensation contracts.

The language of the statute seemingly limits the exception to employees and applicants. However, interpreting the personnel records requirement seeped into state election procedures in 2014. In November 2014, Saline County expanded the Saline County Commission to five districts, creating two vacant positions to be filled by the Governor. The Salina Journal and the Associated Press then asked Governor Brownback for the applications of all those applying for the new positions. Brownback denied the newspapers’ request, citing the personnel records exception to KORA. Plaintiffs distinguished applicants for employment, protected by the exception, from “applicants” to public office. The exception ought not apply to the latter group, according to the newspapers. In 2015, the trial court ruled for the newspapers. The court held that the personnel records exception did not apply to applications for the Saline County Commission because the applicants were “nonemployees.”

This decision did not lead to the ultimate release of records to the Salina Journal and Associated Press. Governor Brownback promptly appealed the decision to the Kansas Court of Appeals. In Salina Journal v. Brownback, (394 P.3d 134 (Kan. Ct. App. 2017)), the Kansas Court of Appeals overturned the newspapers’ brief victory earlier this year, siding with Governor Brownback. For the exception to apply in this case, the court held that the government must establish: (1) the information constitute a public record; (2) the records belonged to a public agency, and; (3) the public records corresponded with applicants for employment. Neither party contested the information’s status as public records nor the status of the Saline County Commission as a public agency. Thus, the case hinged on whether “applicant for employment” included people applying for appointment to an elected position?

The court relied predominantly on statutory interpretation. According to the last antecedent doctrine, the court determined that the term “applicant for employment” was qualified by the modifying phrase, “officers and employees.” Thus, “applicants for employment” include applicants to appointments as elected officers in public agency, not just employees in public agencies. The opinion states simply that commissioners for the Saline County Commission clearly count as officers with authority in local government. Further, these commissioners go through an application process just like applicants for traditional employment. Since employment is the ultimate goal for a potential elected official and a potential employee, both are exempted from KORA under the personnel records exception. Importantly, the court issues this decision despite the liberal construction doctrine codified in Section 45-216 in KORA. The court ruled that liberal construction applies only to ambiguous statutes, and the personnel records exception is clear and unambiguous when the last antecedent doctrine is applied.

Some believe this Court of Appeals ruling marked an expansion of Kansas’ personal records exception. Judge Hill, the sole dissenter in the case, argued that the majority opinion expanded the exception from employee protection to protection of identities of those seeking election to public office. He believes this expansion to be inappropriate because candidates do not seek jobs, they seek our votes for elected office. Further, Judge Hill argues that there is a patent difference between “a policy maker and one who carries out that policy.”

Judge Hill’s dissent raises several questions for both the press and the public going forward in the search for information on electoral candidates. First, the decisions and dissent led legislators to look at the differences between appointed officials and elected officials for KORA purposes. In fact, on July 1, 2017, the Kansas legislature unanimously passed a bill requiring elections for county commissioners following commission expansions, replacing governor appointments. This decision may also implicate issues of freedom of the press since it limits the records the press is able to obtain on candidates for elected offices. Elected officials seem more public than traditional employees. Employees perform a job for a public agency behind closed doors. Meanwhile candidates make policies and broadcast those policies and themselves to their public, voting constituencies. The Salina Journal and the Associated Press further argue that the information contained in personnel records is likely to be revealed by the candidates themselves in their campaigns anyway.

Nonetheless, it is still too early to determine the implications of the Kansas Court of Appeals ruling in Salina Journal v. Brownback. We do know one thing, however. Applicants—and candidates—for appointment or election will be protected by KORA’s personnel records exception because the Kansas Supreme Court denied to review the case.